The Walayar case relating to the rape-death of two minor girls is a shocking chapter in the history of criminal justice system.
A Kerala Court - Special POCSO Court in Palakkad - acquitted all the five accused in the case after a trial marked by shoddy investigation, casual prosecution and insensitive adjudication.
Understandably, the acquittals have led to massive outrage in the civil society.
The case involves the unnatural death of two sisters aged 13 years and 9 years respectively in their one room house on 13.1 .2017 and 4.3.2017 respectively in Walayar district in Kerala. On the death of the eldest sister by hanging, crime no 43/2017 u/s.174 of the Criminal Procedure Code was registered by the S I of Police Walayar Police Station. After the death by hanging of the younger sister in the same house on 4.3.2017 crime no 240/2017 of the Walayar Police Station was registered. There was public outcry against the police who did not conduct proper investigation after the death of the elder sister. There was wide spread protest and there was a perception that had the police properly investigated the first case the death of the second sister would not have happened. There was allegation that the sisters death was due to rape and sexual abuse by some persons in the locality. The S I of police Walayar Police Station was placed under suspension. The Chief Minister of Kerala declared that , " the Government views with utmost seriousness the incidents of sexual abuses even on minor girls.The police will take very strong actions. Those who are responsible for the death of the sisters in Walayar , whoever they are will not be spared. They will be brought justice and accorded the highest punishment."
The C I of Police in Charge continued the investigation .In his investigation it was found that the girls were subjected to sexual abuse .Hence he filed report to incorporate the penal section u/s 376, 377and 306 of IPC and S.5 r/w S.6 of the Protection of the Children from Sexual Offences Act (POCSO). Immediately a special investigation team (SIT) was constituted to investigate the cases .The SIT was headed by Dy.S.P Palakkad .In his investigation the Dy.S.P reached the conclusion that the sisters were repeatedly subjected to unnatural sexual inter course and the intolerable pain in the anal region led the girls to commit suicide. He arrested the accused 6 in number including a juvenile on 10.3.2017. The accused were remanded in judicial custody. On completion of the investigation he filed separate charge sheets against each of the accused. The case against the minor was filed before the Juvenile Justice Board.
On receipt of the final report, it was taken cognizance of in the Sessions Court , Palakkad including offences punishable under sections 376 (2) (1) and (n), 305 ,354 of the IPC and u/s 7 r/w s. 8 and s.5 (1) r/w s.6 of POCSO Act and u/s 3(1) (w) (i) and section 3 (2) (v) of the SC/ST (Prevention Of Atrocities ) Act . The cases were numbered as S.C 396/17 against the accused Valiya Madhu for the offences committed against the elder girl and SC 400/17 against the same accused for the offences committed against the younger girl. SC 397/17 , SC 398/17, SC 399/17 were against the accused Shibu Pradeep kumar and Kutti Madhu respectively .All these cases were made over to the court of Special Court for the trial of POCSO Cases which is the I Addl. Sessions Judge Palakkad. After the trial all the accused were acquitted by the Court through separate judgements. These judgements of acquittal have caused public outrage and wide spread protest in Kerala.
Reverse burden of proof under POCSO Act not considered
On perusal of these judgements it is seen that all the accused were acquitted of the offences alleged against them almost for the same reasons which boiled down to faulty investigation, paucity of evidence ,the lethargy and indifference of the prosecution and the consequent lapses in conducting the prosecution. And to top it all the trial court remained a mute spectator of the entire proceedings right from the stage of taking cognizance of the cases to the close of the trial. The object of this article is not to find fault with any of the functionaries personally but to highlight as to how our Criminal Justice System failed to administer justice to the victims of the crime in these cases as reflected from the above five judgements .It is not necessary to discuss each case to show what went wrong with our Criminal Justice System.
As all the judgements are in the same pattern and almost identical words and reasoning, I will discuss the judgements against the accused Valiya Madhu in SC No 397/17 and SC 400/17 pertaining to the death of both the sisters. While acquitting the accused the court observed ,
" it is clear that in the chain of circumstances only two circumstances have been proved by the prosecution . The first one is that the accused is a relative of the victim and the second one is that the accused had an opportunity to commit the offences against the victim girl either when she had visited his house or when the accused visited the house of the victim .But there is absence of any other circumstances to link the accused with the commission of the alleged offences. Therefore, I have no hesitation to hold that the prosecution has miserably failed to prove the alleged offences against the accused beyond reasonable doubt''.
There is nothing in the judgement to show that the court was aware of its role and responsibility as the Special Judge for the trial of POCSO cases. U/S 29 of the Act there is burden on the accused for proving his innocence due to the presumption as to certain offences unlike in the trial of offences under the IPC. As per S.29 of the Act,
" Where a person is prosecuted for committing or abetting or attempted to commit any offence u/s 3, 5,7 & s.9 of the Act the Special Court shall presume , that such person has committed or abetted or attempted to commit the offence as the case may be , unless the contrary is proved".
Further, u/s 30(1) of the Act , in any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused , the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. In the instant case the accused was also charged under the provisions of the POCSO Act . But the court has not even mentioned this aspect of the case in the appreciation of the available evidence. Instead the case was tried as any other Sessions Case where the entire burden of proof is on the prosecution. The court simply discarded every piece of prosecution evidence for a mere suggestion from the defence counsel in the cross- examination. In my view this faulty approach and the failure to draw the necessary presumption has resulted in the unmerited acquittal of the accused at least in the above two cases.
The following are the pieces of the prosecution evidence discarded by the trial court. The direct evidence of PW 5, PW 6 and PW 7 can be considered.
1) PW 5 step father of the victim girl deposed that one day he saw the accused committing unnatural sex on the girl (vide paragraph 15 of the judgement)
2) PW 6 mother of the victim girl deposed that one day she saw the accused misbehaving with the girl (vide paragraph 16 of the judgement)
3) PW 7 grandmother of the victim girl said that she saw the accused misbehaving with the victim girl ( vide paragraph 17 of the judgement).
4) In addition to this direct evidence of witnesses, there is also the
Supporting evidence of PW 8 (vide paragraph 18 of the judgement) who had acquaintance with the victim girl from her childhood. PW 8 deposed that the victim had told her about the accused abusing her.
In a criminal case, the judge who appreciates the evidence of the prosecution has to view the evidence as a whole, instead of taking and examining each piece of evidence individually and discarding it for one reason or another. It is well settled that when there is credible direct evidence , absence of scientific evidence is not sufficient to discard the prosecution case. There will be no criminal cases without omissions and contradictions. But a judge should bear in mind that he should not reject the prosecution case, 'if there is a ring of truth in the main' " Proof beyond reasonable doubt is no perfect proof " .A fact is proved when the court believes its existence or believes it is true . It is the judicial evaluation of the totality of the evidence and not isolated scrutiny of each piece of evidence that is warranted in a criminal case.
Totality of evidence not considered
In the instant case the court has failed to consider the totality of evidence .The court disbelieved the eyewitness accounts of the step father and mother of the victim on the ground that in their initial statements given to the police – the local S I and the C I –they had not mentioned about their witnessing the sexual abuse of the victim by the accused .The court is oblivious of the fact that the SI of police Walayar Police Station was suspended for his lapses in the investigation and the C I was holding charge only for a few days before the case was transferred to the SIT headed by PW 30 Dy.S.P who investigated the case and filed the charge sheet. Perhaps the special prosecutor failed to bring it to the attention of the court at least during the argument of the case , even if it is not done during the examination of PW 28 SI, PW 29 CI and PW 30 who took over the investigation only on 9.3 .2017.
The reason given by the judge for rejecting the evidence of the above witnesses is that it was only in the statements recorded by the new investigating officer (PW30), who took over the investigation after the death of the younger child that they mentioned about the sexual abuse by the accused.The court failed to consider their explanation with sympathy that they had suppressed the incident out of concern for the welfare of the girl child. According to the judge, PW 5 & 6 were really bothered about the welfare of the daughter definitely they would have taken action against the accused , at least after the death of the victim. In the appreciation of the evidence the court has failed to take into account the educational, economic and social background of the witnesses and their usual course of human conduct. It appears that this court is unaware of the importance of S.114 of the Evidence Act. The court may presume the existence of any act which it thinks likely to have happened, having regard to –
a) Common course of natural events ,
b) Human conduct , and
c) Public and private business
in their relation to the facts of the particular case.
In the instant case the court failed not only to draw the statutory presumption u/s 29 of the POCSO Act but also the presumption under the Evidence Act with regard to common course of natural events and human conduct. In our society most of the parents suppress the incident of a sexual abuse of a girl child out of concern for the welfare of the child and the family reputation. The court also failed to consider the usual human conduct of the shock of the parent immediately after the unnatural death of their elder child. Their shock must have been compounded by the unnatural death of the younger child.Therefore , the observation of the court that PW 5 & PW 6 were really bothered about the welfare of the daughter definitely they would have taken action against the accused , at least after the death of the victim is at best a value judgement and at worst it exposes the lack of worldly experience of the Judge .The accused was a relative of PW 5&PW 6 Who will implicate their own relative in the sexual abuse case of their daughter unless he was really involved ?
The court also observed that there were contradictions regarding the time of witnessing the sexual abuse by the accused which cannot be considered a material contradiction in the case of sexual offences cases. It was equally the responsibility of the Special Public Prosecutor and the Special Judge to get the contradictions clarified either through re-examination or through court questions. Further there is the observation of the court that there were possibilities for manipulation of their statement after the investigation was taken over by PW 30 Dy.S.P. The court should not have made such an observation without giving reasonable grounds for such possibilities in the judgement. A mere suggestion from the defence during cross examination is not reasonable ground for such observation. Again what is the motive for implicating the accused in a false case by the investigating officer and PW 5 & 6 when the accused is their relative ?
In disregarding the evidence of PW 8 as here say evidence and in the light of S.6 & s.32 of the Evidence Act, the court has failed to consider the circumstantial evidentiary value of the evidence of PW8 in the totality of evidence.
The court has given undue importance to the statement given by PW 18 doctor who conducted the post-mortem examination of the younger child that the anal injuries of the girl need not be necessarily caused by penetration but also could be due to piles infection .It was only an answer to a suggestive question in the cross –examination. When Ext.P10 certificate states that the girl was subjected to carnal intercourse against the order of the nature repeatedly that is a material piece of evidence which should weigh against the possibility of piles infection which is a mere suggestion in the cross –examination. To disbelieve the victim is the height of injustice. The victim must be turning in the grave!
In the trial of a criminal case, the Magistrate/ Judge is not just a referee or a spectator. He is an active participant to ensure fair trial and to ensure that justice is done not only to the accused but also to the victim .U/s 165 of the Evidence Act a judge is empowered to ask questions and to seek documents to ensure that justice is done to both the parties. The contradictions cited by the judge in the oral evidence of PW 5, 6, & PW 7 could have been clarified during the trial by the judge himself by asking questions if the prosecutor failed to conduct re-examination, instead of remaining a mute spectator and faithfully writing down whatever questions asked by the defence counsel and whatever said as answers by witnesses to such questions.
After discarding the direct evidence of prosecution witnesses as discussed above the court concluded the judgement stating that " it is clear that prosecution evidence is insufficient to complete the chain of circumstances unerringly pointing towards the guilt of the case", as if the prosecution case solely rested on the circumstantial evidence.
Poor standard of investigation
On perusal of the above judgement it is clear that the standard of investigation was very poor. Investigating officer mostly relied on oral evidence and inadmissible recovery evidence to prove the sexual offences. Investigating agency failed to collect scientific evidence like semen remains from the dress of the children and of the accused .The SIT led by the Dy.S.P failed to investigate the possibility of homicidal death mentioned in the post-mortem examination of the younger child in spite of the clear observation of the Forensic Surgeon " there was evidence suggesting of unnatural sexual offence on the child, in the form of multiple episodes of anal penetration in the past. In view of the age of the child ( 9 years) and the length from sole of heel to tip of right middle finger with right upper limb fully extended upwards (151 cms),the possibility for homicidal hanging needs to be ruled out by correlating with measurements at scene of crime, and through investigation " . But, there was absolutely no investigation in that direction . The investigation jumped to the conclusion that it was death by hanging by the 9 year old child because of the availability of a cot and the broken chair in the room and the court was also satisfied with the scene mahazar .The court observed that the girl might have used the broken chair or wooden cot in the room to fix the ligature from the rafter of the house. Any investigating officer would have used his common sense to suspect the homicidal hanging of the 9 year old child who might have been a valuable witness of the sexual harassment of her elder sister by the accused persons in the cases. This s a very serious lapse in the investigation by PW30 Dy.S.P.
Object of POCSO Act defeated
There is a total failure of the criminal justice system in this case. The object of POCSO Act was defeated in these cases by all the functionaries - the Police, the Prosecutor, and the Judge. The State is responsible for the failure to establish an exclusive POCSO Court for the trial of such cases in Palakkad district. U/s. 28 of the Act, for the purpose of providing speedy trial State Government shall in consultation with the Chief Justice of the High Court , designate for each district a Court of Session to be a Special Court to try the offences under the Act. It is also provided that if a court or session is notified as Children's Court under the Commissions for the Protection of Child Rights Act or a Special Court designated for similar purposes under any other law for the time being in force, then such court shall be deemed to be a special court under this section. Section 33(1) of the Act regarding the procedure and power of special court should be read along with section 28 of the Act . As per S.33(1)
" A Special Court may take cognizance of any offence , without the accused being committed to it for trial, upon receiving a complaint of facts ,which constitutes such offence , or upon a police report of such facts".
A perusal of the judgements shows that the special procedure u /s- 33(1) is not followed in the instant cases. It is stated in the judgement that "on receipt of the final report it was taken cognizance and after numbering the case as S.C No . /2017, the Principal Sessions Judge made over the case to this court for trial and disposal". From this it is clear that the cognizance of the case was not taken by the special court u/ s 33(1) of the Act. After taking cognizance in the Principal Sessions Court, it was only made over for trial and disposal by the special court.
U/s 33(1) the police produces the charge sheet directly in the special court as per section 173 of Cr.P.C for trial of POCSO Cases. At this stage, the court is called upon to examine the charge sheet for short comings, if any. It must satisfy itself that there are sufficient evidence in the form of documents and depositions before summoning or production of the accused for trial. It is this process which is called "taking cognizance of the case". If the judge had done a proper job of " taking cognizance of the case ''by applying his judicial mind , he would have returned the charge sheet to the Police and directed it to produce scientific evidence that are warranted in trying sexual offence cases. The Special Court in the instant cases, did not take cognizance of the cases as per law and procedure stipulated. It only tried and disposed of the cases only like any other sessions cases involving IPC offences made over to it for trial.
The Criminal Justice System failed the victims of a heinous crime.
(The author is a retired District and Sessions Judge)